Justia Immigration Law Opinion Summaries

In 2000 husband and wife, citizens of Lithuania, entered the U.S. with illegally-obtained visas. They have two children born in Lithuania and a third born in the U.S. When the visa fraud was discovered, they cooperated and were sentenced to one year of probation. The government charged them with removability for being inadmissible at the time of entry and for having been convicted of a crime involving moral turpitude. 8 U.S.C. 1227(a)(1)(A), 1182(a)(7)(B)(i)(II), and 1227(a)(2)(A)(i). Petitioners applied for asylum and withholding of removal. The Immigration Judge denied the request for asylum; the Board of Immigration Appeals affirmed. The Seventh Circuit affirmed. The affidavits established, at best, that the government of Lithuania is unstable and does little to protect its citizens. Fear of retribution from co-defendants for an alien's cooperation with the U.S. government, in exchange for a reduced sentence, is not a well-founded fear based on a protected ground.

Defendant pleaded guilty for unlawfully attempting to reenter the United States after having previously been removed. At issue was whether the district court erroneously held that defendant's petty theft convictions each categorically qualified as an aggravated felony. The court held that because the judicially-noticeable documents submitted by the United States Attorney established clearly and unequivocally that defendant's May 30, 2006 petty theft conviction was based upon his plea of guilty to conduct that constituted a generic theft offense, and because this was a theft offense conviction for which the term of imprisonment was at least one year, defendant's offense level was correctly increased by eight levels under U.S.S.G. 2L1.2(b)(1)(C).

Petitioner, a citizen and national of Honduras, filed an application for deferral of removal under the Convention Against Torture (CAT). The BIA denied the application, concluding that petitioner had not established that he would more likely than not be tortured if removed to Honduras. The court held that, because the BIA failed to give reasoned consideration to potentially dispositive testimony by petitioner's expert witnesses and did not address all of petitioner's claims, the court granted the petition and remanded to the BIA.

Petitioner, a citizen of India, entered the U.S. in 1995 on a B-1 visa. After her visa expired, she accrued more than one year of unlawful presence. An application for labor certification was approved in 1999. Her employer's Petition for Alien Worker that was granted in 2000. In 2001, petitioner applied to adjust her immigration status to lawful permanent resident under the Legal Immigration Family Equity Act, 8 U.S.C. 1255(i). While her application was pending, she was granted advanced parole, which warned that if she accrued more than 180 days of unlawful presence subsequent to April 1, 1997, and subsequent to applying for adjustment of status, and then departed the U.S., she could be found inadmissible. Petitioner nonetheless traveled outside the U.S. and used the advanced parole to be permitted to reenter in 2002. In 2004, the application for adjustment of status was denied because her travel outside of the country rendered her inadmissible for a period of 10 years under 8 U.S.C. 1182(a)(9)(B)(i)(II). In removal proceedings, an Immigration Judge denied the application and granted voluntary departure. The BIA affirmed. The Third Circuit rejected an appeal.

Israeli citizens Arturas Bakanovas, Edita Bakanovas, and their daughter, Karolina Bakanovas, sought review of an order of the Board of Immigration Appeals (BIA) that denied their motion to reopen. In 1990 Arturas and Edita Bakanovas emigrated from Lithuania to Israel and became Israeli citizens. In 1991 they entered the United States on visitor visas and, after they overstayed their visas and the Immigration and Nationalization Service issued orders to show cause why they should not be deported, Arturas applied for asylum. The asylum application stated that Arturas had suffered persecution in Israel because of his Catholic faith and Lithuanian origin, that Edita had suffered persecution in Lithuania because of her Jewish faith, and that they both suffered persecution in Israel because of their interfaith marriage. In 1994 an immigration judge denied the Bakanovases asylum and withholding of deportation but granted their request for voluntary departure, with an alternate order of deportation to Israel or Lithuania if they remained in the United States after the voluntary-departure deadline. In October 2000 the BIA affirmed the order, and the Tenth Circuit affirmed that decision. The Bakanovases did not leave the United States, and in January 2007 they were arrested on immigration charges and released on bond. They then met with their current attorney, who informed them in April 2007 of the availability of relief under the Convention Against Torture. In March 2010, almost three years later, they filed a motion to reopen with the BIA, which the BIA denied. They petitioned the Tenth Circuit to review that decision. Because the denial of a motion to reopen is "a final, separately appealable order," the Tenth Circuit lacked jurisdiction to review the case. The Court dismissed Petitioners' appeal.

Defendant appealed from his conviction for importation of marijuana and possession of marijuana. Defendant contended, inter alia, that the district court erred by preventing him from presenting evidence of duress at trial and by refusing to give a jury instruction on the defense of duress. The court held that the district court did not err in finding that defendant failed to make the prima facie showing of duress necessary to present the defense at trial and to receive a duress jury instruction.

Petitioner sought, inter alia, to reopen his immigration proceedings by raising challenges to, or seeking an exception to, the April 26, 2005, deadline to seek relief under former section 212(c) of the Immigration and Nationality Act (INA), 8 C.F.R. 1003.44. The court held that section 1003.44's deadline to file special motions to reopen was a constitutionally-sound procedural rule and that absent some exceptional circumstances, not present here, petitioners that missed the deadline were not entitled to relief from that deadline.

Plaintiff appealed the district court's judgment dismissing his petition for a writ of mandamus and his complaint seeking declaratory and injunctive relief under the Administrative Procedure Act (APA), 5 U.S.C. 551 et seq. Plaintiff's complaint requested the district court to mandamus the defendants (1) to determine as a matter of law that plaintiff had been "admitted" to the United States for purposes of his application for adjustment of status under 8 U.S.C. 1255(a) and (2) to re-open and re-adjudicate plaintiff's application for adjustment of status, which was previously denied. The court held that plaintiff could not satisfy the requirements for mandamus relief and that he had not demonstrated that he lacked an adequate remedy for obtaining relief. In fact, plaintiff had sued under the APA, which provided an adequate remedy. Therefore, the court held that because plaintiff had an adequate remedy available to him, the district court properly dismissed his request for mandamus relief. The court also held that the plain language of section 1255(a) limited eligibility for status adjustment to an alien who had been inspected and admitted or paroled. That an alien with Temporary Protected Status had lawful status as a nonimmigrant for purposes of adjusting his status did not change section 1255(a)'s threshold requirement that he was eligible for adjustment of status only if he was initially inspected and admitted or paroled. Accordingly, the court held that the district court's ruling was consistent with the plain language of the statute. Furthermore, even if the statutory language was ambiguous, the court deferred to the Department of Homeland Security's consistent and well-reasoned interpretation of the interplay between section 1255(a) and section 1254a(f)(4). Therefore, the court affirmed the district court's dismissal of the petition and complaint.

Defendant, manager of a kosher meatpacking company, was convicted of 86 counts of bank, wire, and mail fraud; making false statements to a bank; money laundering; and violations of an order of the Secretary of Agriculture. Defendant appealed his convictions and sentence. The court held that there was no evidence in the record that the district court's decision to remain on the case prejudiced defendant's verdict and concluded that the district court did not err by denying defendant's motion for a new trial. The court also held that the district court did not abuse its discretion in trying the financial charges first where the district court's order was a practical solution given the nature and number of the charges. The court further held that, with the exception of one count of false statements to a bank which was premised solely on violations of immigration law, any error on this evidence would have been harmless because it would have had no effect on the verdict. Therefore, the district court did not abuse its wide discretion in excluding evidence. The court finally held that, because defendant's offense was falsely stating that the company was in compliance with its laws, the court did not commit plain error with its instruction on harboring illegal aliens; defendant's money laundering convictions were lawful and did not merge with any other of his crimes; there was no error in the district court's loss calculation; and the district court did not abuse its considerable discretion in imposing a 324 month sentence. Accordingly, the court affirmed the judgment of the district court.

Ruben Flores-Olmos pleaded guilty to one count of being an alien in the United States after deportation but reserved his right to appeal the district court's denial of his motion to suppress evidence acquired during a traffic stop. On appeal, Flores-Olmos argued that he was the victim of racial profiling. He further contended that the Oklahoma seat belt law is ambiguous and that the doctrine of lenity should absolve him. Finding no error in the district court's refusal to suppress evidence of Flores-Olmos’s illegal presence in the United States, the Tenth Circuit affirmed the district court's decision.